May 28, 2010
Gentlemanly Restraints Removed
The web page of the Massachusetts Board of Bar Overseers reports a disbarment imposed by a single justice of the Supreme Judicial Court for misappropriation of entrusted funds and related misconduct. The Board's Memorandum describes the misconduct and the attorney's response:
Vehemently assailing the committee members, the probate court judge, Attorney Davis, and personnel in the Office of Bar Counsel in ad hominem terms, the respondent proclaims that he has been limited, until now, “by the prudential veil of disclosure and criticism of judicial action applicable to an admitted attorney.” Disbarment, he suggests somewhat ominously, “would free him from those outdated and questionable restraints, observance of which, as a gentleman and professional, have hurt and cost him dearly.” He should be disbarred.
Thefts From Law Firm Draw Nine-Month Suspension Recommendation
The Illinois Review Board has recommended a nine-month suspension of an attorney admitted in 2000. The attorney had clerked at and practiced with a law firm. When his income declined in 2005, the attorney received fees due the firm and misappropriated the funds for his own use. He stipulated as follows:
The Administrator charged, and [the attorney] admitted, that on twenty-one (21) separate occasions between January 19, 2006 and January 3, 2007, [he] received fees from clients that should have been turned over to EMC [his firm]. Individual payments ranged from $270 to $7,500. [He] received a total of $30,020.00. Rather than turning the funds over to EMC, [he] took the money, without EMC’s knowledge or consent, and used it for his own purposes. Because of [his] fee agreement with EMC, his conduct resulted in conversion of approximately $15,010 from EMC. Given adjustments, the parties ultimately agreed that the amount [he] owed EMC was $12,345.20.
In an additional incident, a client paid [the attorney] $1,500. This incident, which was not part of the charges, occurred in mid-2006. [He] deposited that money in his own account, rather than giving it to EMC. [He] borrowed money from his brother and repaid EMC shortly after diverting the funds. [He] testified that he thought that, when he repaid that money, he discussed the matter with...an EMC partner and King’s mentor and friend. [He] did not tell [the partner] that there had been other similar incidents.
He stopped his misconduct when his income rose and his financial situation stabilized, but the conduct was discovered after an investigation into thefts committed by his secretary.
The Review Board rejected the Administrator's call for a one-year suspension:
Given all the circumstances of this case and given the precedent discussed above, we conclude that [the attorney] should be suspended for nine (9) months. In our opinion, a suspension of this length strikes a proper balance between the seriousness of [his] misconduct, and the aggravating and mitigating factors present here. The aggravating factors include the intentional and repeated nature of [his] misconduct, the amount taken, and the fact that [he] did not promptly make full disclosure; he really would have had no way of doing so as he did not keep any records of the amount he had converted. In mitigation, [he] did not engage in additional misconduct. No clients were harmed by [his] misconduct. [He] is in the process of making restitution satisfactory to EMC. He has expressed remorse and recognizes the wrongfulness of his conduct.
We also recommend that the suspension continue until [he] completes restitution to EMC and successfully completes the program offered by the Illinois Professional Responsibility Institute. Both conditions are appropriate under the circumstances of this case and [he] does not object to either condition.
It is not at all unusual for misconduct to be brought to light by the attorney's secretary. I recall many such cases from my time with the D.C. Bar. It is, however, unusual for misconduct to be discovered because the secretary also is stealing from the firm. (Mike Frisch)
May 27, 2010
"Less Than Stellar Customer Relations" Or Something More?
The Oregon Supreme Court imposed a 30-day suspension of an attorney for his failure to communicate with a client named Cohn. The court considered but was unimpressed with the attorney's view that the conduct displayed "poor business sense" but did not amount to an ethical violation:
The accused does not dispute any of the..facts. Instead, he contends that, if the Bar and the trial panel had a "realistic understanding of trial practice," they would see that his actions amounted to no more than "[l]ess-than stellar customer relations." In support of that position, the accused asserts that, during the eight-month period between the accused's last communication with Cohn in November 2005 and his July 2006 response to Cohn's letter threatening to terminate the representation, Cohn had to have understood the status of the case. That is, Cohn had to have known that the Marriott had made no settlement offer, because Cohn would have had to be consulted about it. In conclusion, the accused argues that there is no bright line concerning how long a lawyer can go without communicating with a client or how many client phone calls a lawyer can fail to return before the failure amounts to an ethical violation. Here, according to the accused, he clearly did not drop below the standard of what a reasonable lawyer would have done in his circumstances because, he contends, Cohn was not actually harmed by the accused's failures.
The accused displays a fundamental misunderstanding about what the Rules of Professional Conduct require. RPC 1.4 requires lawyers to maintain reasonably adequate communication with their clients by keeping clients informed about the status of their matters, by complying with reasonable requests for information, and by explaining matters to the extent reasonably necessary to permit clients to make informed decisions. Although RPC 1.4 is a relatively new rule in Oregon, a lawyer's duty to communicate with clients was a part of the diligence requirement of former Disciplinary Rule (DR) 6-101(B), which dealt with neglect of a legal matter. In considering alleged violations of that rule, this court held that failing timely to communicate good or bad news to the client constituted a violation of that rule, as did failing to inform the client about the status of a case. The court also observed, in a case in which a lawyer did not write any letters to his client about the case and failed to return his client's phone calls or respond to the client's requests for progress reports, that neglect of a client and procrastination are violations of professional responsibility. (citations omitted)
In this case, we have no difficulty concluding that the accused's failure to communicate with Cohn went well beyond "bad customer relations" and violated RPC 1.4(a) and (b). The accused failed to discharge his professional responsibility to keep his client reasonably informed about the status of the case when he did not apprise Cohn about communications with the Marriott, Cohn's health insurer's assertion of recovery rights, or his own judgment that settlement negotiations should not be (and therefore had not been) commenced. He also failed to discharge his professional responsibility to respond to reasonable requests for information when he ignored Cohn's repeated requests for updates and information about the case and for confirmation of Cohn's understanding of how the case would proceed. Those requests were reasonable in substance and timing.
The client was a Florida resident injured outside a Marriott Hotel in Portland. The client slipped. The client fell. The client suffered and sought recompense.
The attorney was given 60 days to wind up his practice. (Mike Frisch)
The Difference Between A Jailhouse And A Courthouse
A majority of the Supreme Court of Washington reversed a criminal conviction for second degree murder of a defendant tried in a jailhouse rather than courthouse. Defense counsel had strenuously objected to the venue. The court noted:
The difference between jailhouses and courthouses is evident even in their
architectural contrast. Courthouses are often monuments of public life, adorned
with architectural flourishes and historical exhibits that make them inviting to
members of the public. Many of our county courthouses are on historical registries
and are visited each year by school children, civic groups, and tourists. A jail, on
the other hand, is singularly utilitarian. Its purpose is to isolate from the public a
segment of the population whose actions have been judged grievous enough to
warrant confinement. Jail buildings are typically austere in character, and entrance
is subject to heightened security.
The majority's conclusion:
We erect courthouses for a reason. They are a stage for public discourse, a
neutral forum for the resolution of civil and criminal matters. The unique setting that
the courtroom provides "is itself an important element in the constitutional
conception of trial, contributing a dignity essential to 'the integrity of the trial'
process." Estes, 381 U.S. at 561 (Warren, C.J., concurring) (quoting Craig, 331
U.S. at 377). The use of a space other than a courthouse for a criminal trial,
particularly when that space is a jailhouse, takes a step away from those dignities.
We hold that the setting of Jaime's trial infringed upon his right to a fair and
impartial trial, and we remand for proceedings consistent with this opinion.
The Prosecutors Of Marion County
Two attorneys in Marion County, Indiana were publicly reprimanded by the Indiana Supreme Court in the wake of alcohol-related driving offenses. that were committed while the attorneys served as deputy prosecutors.
In one matter, the attorney pled guilty to a misdemeanor of driving with a .15 or greater blood alcohol content. The attorney was no longer employed as a deputy prosecutor, according to the court's order. However, IndyStar.com reports that the attorney was just rehired.
The other pled guilty to a charge of reckless driving and resigned from employment. (Mike Frisch)
Indefinite Suspension For Sexual Behavior
The web page of the Ohio Supreme Court reports:
The Supreme Court of Ohio today imposed an indefinite suspension against the law license of [a] Fremont attorney...for multiple professional misconduct violations, including inappropriate touching of and sexual remarks to clients and others.
In a 6-0 per curiam opinion, the Court adopted findings by the Board of Commissioners on Grievances & Discipline against [the attorney] for “engaging in a pattern of inappropriate sexual communication and behavior with a number of women, including his clients, and failing to file a timely notice of appeal on behalf of a client.”
The Court agreed with the board’s determination that the sanction recommended by the parties is not sufficient to protect the public from further misconduct. “Because respondent has not yet received the treatment necessary to develop a realistic and effective plan to decrease his risk of repeating inappropriate sexual behaviors, he remains at risk to reoffend.”
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.
The opinion is linked here.
The attorney had engaged in misconduct with a juvenile client that involved instant messages of a sexual nature, playing "footsie" with her at a detention facility and telling her he was aroused. In another matter, he conducted an 90-minute interview with a client's girlfriend in which he touched her and spent most of the time talking about himself and his workouts. He showed another attorney photographs of a "scantily clad" client. He sexually harassed one divorce client and inappropriately touched another.
Another matter involved visits to the lockup at the Sandusky County Sheriff's Department. A female sergeant received a complaint from the attorney's female client about his inappropriate attire. The client later complained that the attorney had shown her pictures of other clients who were exotic dancers and had proposed a sexual liaison with her. The sergeant also complained about the attorney's discussion about the size of his penis with her.
The attorney was diagnosed by the Bar's clinical director with frotteurism (a type of sexual disorder) and narcissistic-personality disorder. After a referral to a facility that specialized in sex-abuse issues, it was recommended that the attorney participate in a treatment program, not represent minors and "not use any steroids or supplements for the purpose of enhancing muscle mass or appearance." His prognosis after participating in the program was evaluated as "poor."
He sought further treatment but a polygraph examination "raise[d] doubt about the level of honesty he [was] showing concerning the extent of his sexual behavior problems."
The court concluded that he has "significant mental health concerns that he has failed to address in the three years since his misconduct came to light." Because he has not received necessary treatment, he "remains at risk to reoffend."
Here is a related report from the Port Clinton News Herald. Mike Frisch)
D.C. To Consider Screening Proposals
An announcement from the web page of the District of Columbia Bar:
D.C. Bar Rules of Professional Conduct Review Committee is soliciting public comment on whether Rule 1.10 (imputed disqualification) of the D.C. Rules of Professional Conduct should be revised.
In February 2009, the ABA adopted amendments to Model Rule 1.10 to permit ethical screening with certain notifications and certifications—without client consent—of lateral lawyers who have moved between private organizations.
In light of the ABA’s action, the Rules Review Committee established a subcommittee to consider whether to recommend an expansion of lateral screening for the District of Columbia. The committee has not yet decided whether to make a recommendation on this subject to the Bar’s Board of Governors. To inform its consideration, the committee hereby requests comment from the Bar and public on the following issues:
- Should the District adopt the amended model rule approach and permit an individual lawyer moving between private sector jobs to be screened from matters in which the lawyer’s new law firm or other organization is adverse to his or her former client?
- If so, should the governing rule be:
- The ABA Model Rule formulation,
- The committee’s draft formulation (which contains several possible variants on post hoc reporting), or
- Another formulation, perhaps one that attempts to take into account the degree or significance of the individual lawyer’s involvement in the former matter?
This link will take you to the particulars. (Mike Frisch)
May 26, 2010
Who Is The Client?
A recent admonition is summarized on the web page of the Massachusetts Board of Bar Overseers:
In June 2007, the respondent met with a long-standing client and her mother. The client informed the respondent that her mother was terminally ill and her death imminent. The two women informed the respondent that they had reached an agreement that they wanted the respondent to memorialize concerning a house the mother owned.
The respondent understood that his client had agreed to let her mother live with her and that the client would fund a trust for the children of the mother’s other daughter in return for the mother’s transfer of her home to the client. The mother’s home was then uninhabitable.
The agreement that the respondent drafted called for the client to fund the trust within two years and had no practical means for enforcement. In addition, the agreement had no provision requiring the client to have her mother live with her or remedy for the mother if she did not. The client paid the respondent a minimal fee for drafting the agreement.
The respondent failed to clearly explain to the mother that he was not representing her interests. The mother reasonably believed that the respondent was providing legal services to her as well as to her daughter. The mother did not understand that, without a provision in the agreement requiring her daughter to have her live with her, her interest in living with her daughter or in having her daughter provide similar care was not protected. The respondent should have known that the client’s mother might have misunderstood his role as the client’s lawyer only, but he did not make reasonable efforts to correct her misunderstanding and did not advise her that the only advice he could give her was the advice to retain counsel.
By August 2008, a dispute arose between the client and her mother. The client’s mother was forced to move from the client’s home. In October 2008, the client sold the property. The client’s mother died in January 2009.
The respondent’s failure to explain his role sufficiently to the client’s mother when he reasonably should have known that she misunderstood his role in the matter violated Mass. R. Prof. C. 4.3(a).
This is kind of misconduct that should be covered in any law school ethics class. I'm sure most of us describe situations just like the one presented here in explaining the responsibility of an attorney to make clear who is or is not represented in a transaction. Where the non-client is elderly and infirm, there is the enhanced possibility for manipulation and abuse by the attorney and the client. (Mike Frisch)
Consulting For Profit And Discipline
The Pennsylvania Supreme Court approved a consent three-year suspension of an attorney convicted of making a materially false statement to the federal government. The statements (five in total) were in reports filed with the National Library of Medicine and falsely asserted that he did not receive income from an outside consulting business. In fact, he had received over &165,000 in outside income. His outside business was called Medico-Legal-Forensic Services.
He also admitted that he had made several misstatements of fact in a deposition in a matter in which he served as a consultant and expert witnesss. the misstatements related to his employment with NIH and NIH's knowledge and approval of his consulting business. (Mike Frisch)
May 25, 2010
Current events in U.S. legal ethics, 2009-2010, according to my students (and benefit Tulane's PILF)
Posted by Alan Childress
Several students writing Independent Studies papers this spring on legal ethics for me, joined by some from an advanced ethics seminar taught by a colleague, have their work collected into a new digital book on current events May 2009 to present. I edited the papers and wrote a Foreword to it, which explains its origins, topics covered, and other stories of the year, plus an ode to Mike Frisch here and John Steele at LEF as the leading bloggers for immediate ethics news and insights. Mike breaks a ton of stories, you already know, and posts multiple times each day, and John among his regular posts does a nice annual roundup of the year's big stories, each December. Some of those stories got covered, I explain, and some not, but in any event I think users will find the collection useful. As the Foreword details, it is for a good cause. Proceeds benefit the Tulane Public Interest Law Foundation, a nonprofit student org that sponsors
indigent client representations and placements in public interest work. Note: Download FOREWORD here.
More details on the book itself and topics to come (and some chapters to be posted), if you do not want to read the Foreword, but mainly I wanted to preview the opportunity to buy this work. Already it is available on Smashwords in multiple formats, such as ePub, PDF, HTML, rtf, and Palm, so anyone can read it without an app or Kindle. There the best format is PDF (footnotes do link) or the one for Sony readers, but we covered everything.
An even better format, with search function enabled and all links I added active, is on Kindle or its free apps for PC, iPad, Mac, iPhone, BlackBerry, and related devices or laptops. The Amazon webpage for this timely book is now active and accepts downloads now, to an app. But at least for now, Smashwords makes more money for PILF and also has the PDF, printable version, so that may be where you will go if you are not yet into Amazon ebooks. Oh, on the iPad, use the Amazon app and the format should work great. If not, let me know.
This is a followup to the post Publish Your Dissertation (but on topic for the blog!), and I can also help you publish other student seminar work and papers from academic conferences, preferably as part of the TPILF series. The website for all this will be qpbooks.com, active tomorrow. Submissions are on law and related subjects, not only legal ethics. Much more info on proposals and other books sold are on the website. For example, CLS scholar and Tikkun editor Peter Gabel did a digital version of The Bank Teller with me.
Contingent Fee Allowed In Domestic Partner Litigation
The Ethics Committee of the South Dakota State Bar opines that a contingent fee may be charged in a contract action betwen domestic partners. Rule 1.5(d) prohibits such arrangement in domestic relations actions involving divorce, support or the value of a property settlement. The claims here do not fall within the prohibitions:
...since the desired recovery is based on a cash transaction for the purchase of real property, it is much more in the nature of an ordinary contract action than a domestic relations action. It is therefore not subject to the restrictions of Rule 1.5(d) and a contingent fee is permissible.
ABA Take Heed
A notable trend in the past 25 years has been the rise of Bar-sponsored programs dedicated to providing help and treatment to members who have struggled with addictions and/or mental health issues.
Sometimes, treatment does not work and the attorney relapses into active addiction. What obligation (if any) does the Bar program have to the public to report the lapse if there is also evidence that the condition impairs the ability of the attorney to practice in an ethical manner? What obligation (if any) does the Bar have to report evidence of past or ongoing serious ethical violations learned in the course of seeking treatment?
The Arkansas Supreme Court touched on the reporting issue in a recent per curiam order.
The court created the original lawyers assistance program in 2000. The program also treats judges. The program sought action on three matters relating to the operation of the assistance program that the court addressed in its order.
First, the court declined to extend the program to law students, deferring action on the request pending clarification and additional information. Second, the court clarified and consolidated the procedural rules governing the program.
The third issue that the court addressed raises policy issues regarding the balance to the struck between protecting the confidentiality of information received by the program that raises substantial questions about honesty, trustworthiness or fitness to practice and the duty to report such misconduct. ABA Model Rule 8.3 favors the program over the public, exempting from the disclosure obligation any information learned from the treated attorney through participation in the program. ABA Model Rule 8.3(c) essentially treats such information as protected by the ethical duty of confidentiality, creating a faux attorney-client relationship between the program and the treated attorney.
This has always troubled me. My view is that a Rule that trumps the duty to report misconduct no matter what an attorney has done and no matter the danger of future misconduct ignores the public interest articulated by Rule 8.3. Lawyers are given the blessing of self-regulation and have an obligation to create regulations "conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar." ABA Model Rules, Preamble at . In my view, granting categorical protection to all information learned in treatment is not in the public interest
The Arkansas court here amended its Rule 8.3. The confidentiality of information obtained by the treatment program is protected from disclosure. However, Rule 8.3(d) provides that the duty to report is reinstated if the program volunteer has reason to believe that the attorney is failing to cooperate with treatment, is engaged in criminal behavior or has engaged in otherwise reportable misconduct "which is beyond or suceeds that behavior upon which the attorney's participation in [the program] was initially based."
For reasons that I will set out in a future post (or law review article), I would abolish ABA Model Rule 8.3(c). Short of that, this Arkansas rule is a definite improvement over the Model Rule. The Rule makes it clear that there are circumstances in which the public interest is greater than that of the treated attorney. (Mike Frisch)
May 24, 2010
Advice From a Former Bar Prosecutor
The Louisiana Supreme Court imposed an 18-month suspension of an attorney who had stipulated that he had failed to provide diligent representation to three clients and "repeatedly provided them with inaccurate or incomplete information." One one matter, he undertook a Texas case without being admitted there.
In the disciplinary case, the attorney admitted that he is an alcoholic and a drug addict. He denied that he was using alcohol and cocaine in a bar deposition and was randomly tested by the Bar's Lawyers Assistance Program. He tested positive for cocaine use in a random test and admitted he had lied in his bar deposition. He claimed that the positive test "was an isolated incident."
The court was persuaded that the addictions caused the misconduct, but found that the attorney was not recovering from his addictions. He had dropped out of the Bar's program after the positive test.
The court made the suspension effective to the date of an interim suspension imposed after the positive test.
If you want to mitigate your bar sanction based on a cocaine addiction, it is helpful to stop using it. (Mike Frisch)
The Wrong Way To Collect Fees
A Colorado attorney was suspended for 18 months based on his conditional admission of misconduct. The summary of the case indicates that:
...[the attorney] settled his own claim for fees against a former client as he negotiated his current client's debt to the former client, paying himself from funds set aside to pay medical claims owed to the former client, and using confidential information from the representation to compromise the debt.
The attorney also had failed to maintain contemporaneous time for billing purposes and failed to place unearned fees in an escrow account. (Mike Frisch)
Disqualification Order Not Appealable
The South Carolina Supreme Court held that the State may not directly appeal an order disqualifying an assistant solicitor. The facts:
The defendant in this case...was charged with the murder of his ex-wife...as well as one count each of first-degree burglary and possession of a firearm during the commission of a violent crime and three counts of assault with intent to kill.
An assistant solicitor in Clarendon County was assigned to prosecute the case. Defense counsel...moved to disqualify the individual assistant solicitor based on the fact that the husband of the assistant solicitor had represented Wilson in his divorce from the murder victim just sixteen months before the alleged murder, and the brother-in-law of the assistant solicitor had represented Wilson at his bond hearing on the criminal charges.
The circuit court granted the motion for disqualification. The State appeals from this pretrial order, arguing the circuit court applied an incorrect legal standard in granting the motion for disqualification.
The court concluded:
We hold the policy implications present in Hagood, i.e., the right of a party to retain counsel of his or her choosing and the development of an attorney/client relationship, are not compelling factors when considering the disqualification of an assistant solicitor. The reasons the Court articulated in Hagood as justification for allowing the direct appeal are not present here, as the State has no substantial right that has been invaded, and the State's ability to appeal has historically been limited in criminal matters.
The appeals in which this Court has considered the issue of disqualification of either one solicitor or an entire solicitor's office have been appeals arising after the defendant's conviction, as they are in the posture of the defendant raising the issue as a ground for reversal. This is consistent with the general rule that a defendant may not appeal until after he is convicted and sentenced. We see no justification for extending different treatment to the State so as to allow direct appeal of this pretrial order. (citations omitted)